F I L E D

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

February 13, 2007

Elisabeth A. Shumaker
Clerk of Court

SHERRY HAMBY,
Plaintiff - Appellant,
v.

No. 06-5043
(D.C. No. 04-CV-631-TCK-FHM)

ASSOCIATED CENTERS FOR

THERAPY, a/k/a Tulsa Systems of Care;
LARRY MARKS, in his official and
individual capacities; CARL HAWES, in
his official and individual capacities;
BRIAN BLANKENSHIP, in his official
and individual capacities,
Defendants - Appellees.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, Circuit Judges and ROBINSON, District Judge.**

Plaintiff-Appellant Sherry Hamby was employed by Associated Centers for

Therapy (ACT), an agency that provides services for children and families with

This order and judgment is not binding precedent, except under the doctrine of
law of the case, res judicata, and collateral estoppel. The Court generally disfavors the
citation of orders and judgements; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
**

Honorable Julie A. Robinson, U.S. District Judge, District of Kansas, sitting by

designation.

mental health problems. ACT terminated Hamby from her position as a family
advocate in April 2004. Hamby then filed an action against ACT, Larry Marks, Bryan
Blankenship, and Carl Haws:1 alleging retaliation under Title VII of the Civil Rights Act
of 1964; violations of the Fair Labor Standards Act (FLSA) by failing to pay overtime
and for termination in retaliation for reporting such wage violations; violation of 42
U.S.C. 1985; and Oklahoma state law claims for public policy tort and intentional
infliction of emotional distress.2 The district court granted summary judgment in favor
of defendants on all of these claims. Exercising the appropriate standard of review,3 we
affirm.
I.

Background 4
ACT is an Oklahoma non-profit corporation that offers outpatient therapy,

rehabilitation, and case management services to the seriously mentally ill. The Systems
of Care (SOC) Best Practice Model is a defined federal and state policy for addressing

Hamby also named the Oklahoma Department of Mental Health, but later
voluntarily dismissed this party from the action.
2

Hamby also brought claims for sexual and racial discrimination and an
Oklahoma state wage law claim. The district court granted summary judgment in favor
of defendants on the discrimination claims, and Hamby conceded her state wage law
claim. These claims are not presented to this Court on appeal.
3

We review a district courts decision granting summary judgment de novo,

resolving all factual disputes and drawing all reasonable inferences in favor of the
non-moving party. Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193,
1199 (10th Cir. 2006) (citation omitted).
4

We review the following facts in the light most favorable to Hamby, drawing
reasonable inferences therefrom. See Metzler v. Fed. Home Loan Bank of Topeka, 464
F.3d 1164, 1167 n.2 (10th Cir. 2006).
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the needs of mentally ill children and their families. In January 2001, Tulsa Systems of
Care (TSOC) was created as a program offering services for children and families
with mental health problems. ACT is the host agency of TSOC, and it receives funding
and is under contract with the Oklahoma Department of Mental Health (ODMH) to
administer the TSOC program.
ACT employs several persons in various positions to administer the TSOC
program, including a position called family advocate. To qualify for a position as a
family advocate, a person must have raised or lived with a child with emotional
problems. The family advocate provides targeted support services, implements a system
of care that is child-centered with the needs of the child and the family directing the
appropriate services, and assists in preventing an out-of-home placement.
In 1999, Carl Haws asked Hamby, a parent of a child with a serious emotional
disturbance, to volunteer and assist in the creation of TSOC. In her volunteer efforts,
Hamby served on both the state and local steering committees for SOC. In January
2001, Hamby became a volunteer family advocate. In July 2001, Hamby began
working as a part-time, salaried advocate with ACT. In 2003, Hamby was hired in a
full-time position as a family advocate. At all relevant times, Haws was Hambys
supervisor.
Haws evaluated Hambys job performance in January 2002 and on July 23, 2003.
Hamby received a good rating of 8.15 on a scale of 1 to 10 on both of these evaluations.
However, Haws noted some concerns with Hambys employment in the objectives
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section of both evaluations. In the January 2002 evaluation, Haws noted that Hamby
needed to improve her communication skills by omitting foul language and colorful
examples. Haws wrote that Hamby needed to back off and let others do their work.
In the July 2003 evaluation, Haws wrote that Hamby needed to avoid inter-office
conflicts by understanding that everyone is different. Hamby contends that the
comments in the objectives section were not made by Haws, but rather that she
identified these areas as needing improvement.
During her employment with ACT, Hamby received four reprimands. She was
first reprimanded on October 17, 2002, when she received a documented verbal review
from Haws for being disrespectful to him and other staff members during a meeting.
Hamby alleges that she received this reprimand after questioning whether Haws bought
computers for employees using flex funds, which were primarily reserved for client
families. The ODMH investigated Hambys allegation and found no wrongdoing by
Haws. Hamby received two more documented verbal reviews on September 19, 2003.
Hamby was reprimanded for allegedly neglecting her duties when she asked her
daughter to inform her employer that she would not be attending a meeting with TSOC
clients on September 11, 2003. Hambys daughter telephoned ACT thirty minutes prior
to the meeting, and she apparently spoke to someone other than Haws. Hamby was
further reprimanded on October 6, 2003, for failing to give support to a client-family
and for being rude. On October 8, 2003, Hamby was disciplined for disregarding the
management system by complaining about her supervisors and coworkers.
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Hamby alleges that over the course of her employment with ACT, she suffered
many abusive and retaliatory acts by Haws and her coworkers. Hamby asserts that in
February 2002, Haws verbally accosted her after a TSOC Steering Committee meeting.
During that meeting, it was discussed whether two volunteer advocates should be
changed to paid status, and Hamby alleges that Haws opposed the change. Hamby
contends that after the meeting Haws told her never to challenge him in public again,
and after that incident, Haws became routinely verbally abusive and retaliatory toward
her. Hamby also alleges that during a staff meeting on August 8, 2003, Haws
announced that TSOC had incurred a budget deficit. Hamby requested documents
reflecting the budget from Haws and tried to reconcile the deficit. Hamby discovered
what she believed to be discrepancies in the budget and expressed her concerns to
Haws. Hamby alleges that Haws screamed at her that she was wasting her time.
Afterwards, Hamby inquired about the need for an audit of TSOC expenditures to
various directors of the TSOC program.
On August 11, 2003, Hamby emailed Janice Hendrix, chairperson for the state
SOC Steering Committee, and complained that Haws and others made derogatory
comments about her at the most recent meeting of the Committee. Hamby alleges that
on August 14, 2003, in response to her email to Hendrix, Haws threatened Hamby and
called her a liar. She further alleges that a coworker had to prevent Haws from further
accosting her. On August 20, 2003, Hamby filed a complaint with the TSOC Steering
Committee against Haws regarding the August 8, 2003 incident, the August 14, 2003
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incident, the amount of her annual raise, and Haws refusal to provide her with a letter
of recommendation. Hamby also filed a complaint with the Oklahoma Human Rights
Commission (OHRC), which was later transferred to the Equal Employment
Opportunity Commission, alleging hostile work environment and retaliation based on
the August 14, 2003 incident.
On August 22, 2003, Ruth Archer, a coworker of Hambys, filed a grievance
against Hamby in which she complained about Hambys job performance and the hostile
environment that she was creating at TSOC. Archer stated that Hamby would lash
out and send emails about TSOC and Haws any time that she got upset. Archer
expressed concern that Hambys communications were not in the best interest of TSOC
and its clients. Archer later withdrew this grievance.
On September 2, 2003, Haws and Bryan Blankenship, Clinical Director of ACT,
met with Hamby. Haws advised Hamby that she would need his prior approval of all
email communications about TSOC before dissemination. Hamby was also told not to
complain to others about her supervisor, but rather she should vent to certain,
authorized persons.
On September 5, 2003, Haws received a letter from a TSOC client, Michelle
Motisi, requesting that Hamby be removed from her childs case due to personality
differences. Motisi stated that Hamby had treated her hatefully during a telephone
conversation.
At a regularly scheduled staff meeting on September 11, 2003, Hamby alleges
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that she was confronted by her coworkers with rumors that she was sending out
derogatory emails about TSOC. The coworkers expressed concern that such emails
were threatening the reputation of TSOC and creating a hostile work environment.
After the meeting, Hamby alleges that she suffered extreme anxiety, dizziness, nausea,
and vomiting. Soon afterwards, Hamby filed a complaint with the Occupational Safety
and Hazard Administration (OSHA) contending that she felt threatened by her
coworkers at the September 11, 2003 meeting.5 This incident preceded the reprimands
that Hamby received on September 19, 2003.
Hamby alleges that on September 24, 2003, an emergency staff meeting was held
to discuss her OHRC and OSHA complaints. However, defendants contend that this
was a normal, routine teambuilding meeting lunch held at a Pizza Hut. Hamby
alleges that she again felt threatened by her coworkers at this meeting, but there is no
testimony by any witness who recalls any threats or hostility directed at Hamby.
On September 29, 2003, another TSOC client, Susan Bloxsom, requested that
Hamby be replaced as the family advocate assigned to her childs case. Ms. Bloxsom
complained about Hambys rudeness and unavailability.
Hamby alleges that in November 2003, Haws allowed Archer to draft and present
an agreement for Hambys signature. The agreement purported to prohibit Hamby from
tape recording meetings and would impose criminal penalties if she violated the

This staff meeting was a separate meeting from the TSOC client meeting that
occurred on the same day and for which Hamby was reprimanded when she failed to
attend.
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agreement. There is a dispute as to whether the agreement was presented to Hamby.

Hamby alleges that the presentation was intended to intimidate or harass her. Haws
denies that he authorized Archer to present the agreement.
On November 26, 2003, Haws and Blankenship met with Hamby to discuss
alleged statements that she made while attending a meeting in Washington, D.C.
Hamby denied speaking about the internal business of TSOC, but Haws again reminded
her not to discuss TSOC matters or her conflicts with Haws outside of TSOC. Hamby
alleges that the ODMH contacted Blankenship to state its concerns about her comments
to federal policymakers. On January 26, 2004, ACT received an email from TSOC
Steering Committee member Regina Rogers-Boyce in which she expressed concern that
Hamby was making repeated complaints to others about Haws and TSOC. RogersBoyce stated that she felt such comments were not good for team morale or anything
else.
Haws and Blankenship again held another meeting with Hamby on February 23,
2004, to discuss improper communications that she made. Hamby had allegedly
communicated with persons outside of TSOC regarding events at the TSOC Steering
Committee meeting. At the February 23, 2004 meeting, Haws distributed a
memorandum to all staff. The memorandum, dated February 23, 2004, states that all
communications about TSOC business need to be sent to and approved by Haws before
distribution to the intended recipient. Hamby contends that she was told on March 10,
2004, that the policy applied only to written communications, but there is evidence that
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other employees of ACT were aware that the policy applied to all external
communications.
On April 12, 2004, Blankenship received information that Hamby had contacted
Carol Schneider, an employee at the ODMH, regarding whether the child of a TSOC
employee could be eligible for the TSOC program. Blankenship learned that Hamby
had given Schneider specific information about the employees child. Hamby contends
that she only asked general policy questions about the availability of the program to
children of TSOC employees, but Schneider testified that Hamby revealed specific
information about the potential client. Defendants contend that Hamby did not receive
prior approval for this communication and that she conveyed privileged information
about a potential client. Hamby contends that she received permission to call Schneider
from Assistant Project Director, Marcia Keesee. But Keesee testified that she did not
give Hamby approval to call the ODMH regarding the question of whether the child of
an TSOC employee is eligible for the program.
On the same day that Schneider received the call from Hamby, Schneider sent an
email to her supervisors at the ODMH regarding the conversation. The relevant portion
of Schneiders email states:
Just to give you a heads up.
Sherry Hamby called me on the way to work this morning.
She was very angry that Ruth Archers son was being
reviewed by the Care Team. She said it wasnt right. She
said the rules were changed and no one told her. She said
that she had to tell Grace that she could not be a Family
Advocate until her child graduated. She said that TSOC has
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5 or 6 cases still waiting and wont be reviewed until next

month. She said that it was unfair that a Family Advocate
gets preferential treatment. She said the rule change had not
been discussed before the Community Team.
Hamby was terminated on April 15, 2004 for failure to meet job expectations.
The termination letter reads: [y]our failure to clear all external communications with
your supervisor, Carl Haws, prior to the transmission is the offense on which this action
is being taken. Hamby appealed her termination, which ACT denied. The letter
denying Hambys appeal discussed the numerous incidents in which Hamby failed to
clear external communications with Haws. Further, ACT concluded in this letter that
based on all of the complaints, incidents, and reprimands surrounding the
communication policy, Hamby was fully aware of this policy and she was in violation
of it when she telephoned Schneider in April 2004.
Hamby then brought this action. The district court granted summary judgment in
favor of defendants on Hambys claims of retaliation under Title VII, violations of the
FLSA by failing to pay overtime and for termination in retaliation for reporting such
wage violations, violation of 42 U.S.C. 1985, and Oklahoma state law claims for
public policy tort and intentional infliction of emotional distress. Each claim is
discussed in turn.
II.

Discussion
A.

Title VII Claims

1.

Retaliation

The district court granted summary judgment on Hambys Title VII retaliation
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claim finding that she had failed to show that defendants proffered reasons for her
termination were pretextual. When analyzing Title VII retaliation claims, this Court
applies the McDonnell Douglas burden shifting approach. Argo v. Blue Cross and Blue
Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Under that approach, a
plaintiffs establishment of a prima facie case creates a presumption of retaliation.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed.
2d 668 (1973). The burden then shifts to the defendant to produce evidence that the
adverse employment action was taken for a legitimate, nondiscriminatory reason. Id.,
93 S. Ct. at 1824. If the defendant meets this burden, the burden then shifts back to the
plaintiff to present evidence that the proffered reason was pretext. Id. at 804, 93 S. Ct.
at 1825.
To establish a prima facie case of retaliation, a plaintiff must demonstrate (1)
that he engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse
action. Argo, 452 F.3d at 1202 (citing Burlington N. & Santa Fe Ry. Co. v. White, ___
U.S. ___, 126 S. Ct. 2405, 241415, 165 L. Ed. 2d 345 (2006); Miller v. Auto. Club of
N.M., Inc., 420 F.3d 1098, 1119 (10th Cir. 2005)). Hamby has established a prima facie
case of retaliation. First, Hamby engaged in protected activity by filing an OHRC
complaint in August 2003 and an OSHA complaint in September 2003. Second, Hamby
began receiving an increased number of reprimands, a challenged action which a
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reasonable employee would find materially adverse. Finally, the close temporal
proximity between the complaints and the reprimands is sufficient to allow an inference
that there was a causal connection between the protected activity and the challenged
action. Id. (citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.
1999)).
The burden then shifts to defendants to show a legitimate, nondiscriminatory
reason for the employment action. In this case, Hamby was terminated from her
employment when her supervisors learned that she had disclosed a potential clients
confidential information after being repeatedly instructed to clear all external
communications regarding TSOC business through her supervisor, Haws. This is a
legitimate reason to terminate Hamby. Therefore, the burden shifts back to Hamby to
show that the proffered reason for her termination was pretext for retaliation. Id.
To show pretext, Hamby must produce evidence of such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employers
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons. Id. (citing Morgan v. Hilti, 108 F.3d 1319, 1323
(10th Cir. 1997)). Hamby argues that she brought forth evidence to place the following
material facts in dispute: (1) whether defendants had an established policy that required
all forms of communication regarding TSOC business to be cleared with Haws before
dissemination; and, if so, (2) whether Hamby violated that policy.
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Hamby contends that defendants communication policy applies only to emails.

Two of her coworkers testified that they were aware of the communication policy, and
stated that the policy applies to email communications. However, in a February 23,
2004 memorandum, Haws informed all TSOC staff that all communications about
TSOC business must be sent through Haws before dissemination. Hamby asserts that
she never received this memorandum while she was employed at ACT, but Ruth Archer
testified that she remembered receiving a memorandum describing the policy. Even
though two employees testified that they believed the policy applied to email
communications, Hamby cannot controvert the fact that defendants communication
policy, as written in the February 23, 2004 memorandum, was that all communications
were to be approved by Haws before dissemination.6
Even if Hamby did not violate this policy because, as she contends, the policy
applies only to written communications or that she had permission to make the
telephone call, the Court must look at the facts as they appear to the person making the
decision to terminate the plaintiff. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1231 (10th Cir. 2000). In this case, the people making the decision to terminate
Hamby were Blankenship, Marks and Haws.7 At the time of her termination, the
6

Hamby suggested to the district court that this memorandum was fabricated to
support her termination, but she offers no evidence, other than speculation, to support
this allegation. Conclusory allegations, lacking evidentiary support in the record, are
insufficient to show pretext. Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir.
2004).
7

At oral argument, defendants stated that the final decisionmakers were

Blankenship and Marks, while Hamby stated that the decision to terminate her
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decisionmakers had information that Hamby had placed the telephone call, unauthorized
under the communication policy, and that she had divulged confidential information
regarding a potential client. After Schneider received Hambys telephone call, she sent
an email to her supervisors at the ODMH describing their conversation, including that
Hamby had revealed confidential information about a potential client. One of
Schneiders supervisors contacted Blankenship and informed him that Hamby had given
Schneider specific information about the employees child. Blankenship also learned
that Hamby did not have permission to make this telephone call.8 The uncontroverted
evidence shows that the decisionmakers knew at the time of her termination that Hamby
had divulged confidential information 9 about a potential client, without permission to do

employment was made by Haws. The record shows that all three participated in the
termination decision. First, defendants conceded to the district court that all three
people made the decision to terminate Hamby. Aplt. App. at 23. Further, in a letter
from Marks to Hamby informing her of her termination, Marks stated that he reviewed
the material prepared by Blankenship and Haws recommending Hambys termination.
Aplt. App. at 144. The letter states that the reason for Hambys termination is her
failure to clear communications with Haws, prior to the transmission. Id.
8

Hamby contends that she received permission from Keesee to telephone

Schneider, but Keesee testified that she did not give Hamby approval. Even if Hamby
received approval from Keesee, as Hamby contends, Keesee authorized her to call to see
if the SOC policy had been changed. Aplt. App. at 225. Based on her own assertion,
Hamby only had permission to ask general policy questions, and Keesee clearly did not
authorize Hambys communication of confidential information.
9

Hamby argues that Schneider, as a member of the SOC staff, had full access to
all confidential information of ACT and of SOC clients, and therefore Hamby did not
disclose confidential information when she discussed specific information about this
employees child. But defendants argue that Schneider, as an employee of the ODMH,
did not have access to confidential information regarding potential clients. As stated
above, the Court must look at the facts as they appear to the decisionmaker. Kendrick,
220 F.3d at 1231. At the time of her termination, the decisionmakers had received
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so, thereby providing the reason for her termination.

To the extent Hamby contends that Blankenship and Marks relied on pretextual
reasons, provided by Haws, and gave perfunctory approval to terminate Hamby based
on Haws recommendation, the Court rejects such claims. Under the rubber stamp
doctrine, a plaintiff can bring a Title VII claim when a decisionmaker gives
perfunctory approval for an adverse employment action explicitly recommended by a
biased subordinate. E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d
476, 484 (10th Cir. 2006) (citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 288 (4th Cir. 2004)). This Court has held that for a plaintiff to prevail on
such a claim, she must show that a biased subordinates discriminatory reports,
recommendation, or other actions caused the adverse employment action. Id. at 487.
Although Haws was involved in the termination decision, Blankenship, as the
Clinical Director of ACT, was also actively involved in Hambys termination, and not
merely a rubber stamp. In this case, Blankenship independently investigated the
allegations of Hambys improper communications. See id. at 488 ([A]n employer can
avoid liability by conducting an independent investigation of the allegations against an
employee.). In fact, Blankenship was closely involved in disciplining plaintiffs
improper communications in the months preceding her termination. Blankenship

information that Hamby had disclosed confidential information to Schneider and

terminated Hamby for initiating this communication.
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participated in meetings with Hamby on several occasions 10 in which he and others

addressed Hambys improper, external communications. Blankenship stated that at the
February 23, 2004 meeting, he informed Hamby, and she expressed an understanding,
that communication included verbal as well as written. Aplt. App. at 128. A
memorandum was issued that same day to all staff informing them of the
communication policy.11 Blankenship learned on April 12, 2004 that Hamby had made
an unauthorized telephone call, and he stated in Hambys appeal of her termination,
[o]n the basis of this contact, and that you had been repeatedly counseled previously
regarding outside contact having to do with TSOC business, management deemed this
serious conduct to warrant immediate termination. Aplt. App. at 128. Therefore, the
record shows that Blankenships decision to terminate Hamby was based on her
improper, external communication and was not based on any of the alleged pretextual
reasons attributed to Haws.
Also, the record shows that Marks, as Executive Director of ACT, made his
decision to terminate Hamby after reviewing Blankenship and Haws recommendations
and determining that Hamby violated the communication policy. While Marks

10

The record shows that Blankenship attended meetings with Hamby on

September 2, 2003, November 26, 2003, and February 23, 2004.
11

Hamby contends that Haws told her that the communication policy applies only
to email communications, and therefore, her telephone conversation did not violate the
policy and was not a valid basis for her termination. Aplt. App. at 224. Even accepting
Hambys allegation as true, Haws alleged statement of the policy would not negate the
views of Blankenship and Marks who determined that Hambys telephone call was
unauthorized under the communication policy.
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considered Haws recommendation, Marks also relied on Blankenships valid reason for
recommending Hambys terminationher improper external communicationand
Marks determined that her communication did, in fact, violate the communication
policy. Hamby has not shown that Haws allegedly discriminatory recommendation
caused her termination when Marks also relied on Blankenships valid reason for firing
Hamby. Thus, Marks based his decision on a valid reason for Hambys termination,
and there is no evidence of pretext.
Hamby also contends that pretext is established by the timing between her
complaints and the adverse employment actions taken against her. Close temporal
proximity between the employees complaint and the adverse employment action is a
factor in determining whether the employers proffered reason is a pretext for
retaliation. Pastran v. K-Mark Corp., 210 F.3d 1201, 1206 (10th Cir. 2000). But mere
conjecture that defendants acted with discriminatory reasons is not sufficient to establish
pretext. Annett v. University of Kansas, 371 F.3d 1233, 1241 (10th Cir. 2004) (citing
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). Hamby argues
that the evidence shows that after she made her complaints, she suffered retaliation in
that she began receiving an increased number of reprimands. But, as the district court
noted, all of the reprimands that Hamby received are tied to an improper action by
Hamby, and there is no evidence that the reprimands resulted from hostility based on
her complaints.
Further, Hamby asserts that there is additional evidence of pretext including her
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allegations that Haws verbally assaulted her on several occasions, her contention that the
ODMH was concerned about her comments to federal policymakers and that she would
contact legislators in the future, and the fact that Hamby had received positive reviews
before she filed her complaints. However, none of these allegations demonstrate any
weaknesses or implausibilities in defendants legitimate reason for terminating her
employment after learning that Hamby had made an unauthorized communication and
divulged confidential information, and a reasonable factfinder could not rationally find
this reason unworthy of credence. We agree with the district court that these allegations
are not evidence of pretext to rebut defendants legitimate reason for terminating
Hamby. Because Hamby has failed to raise a genuine issue of material fact as to
whether defendants proffered reason for her termination is pretext for retaliation, we
affirm the district courts decision to grant summary judgment in favor of defendants as
to this claim.
2.

Coworker Retaliation

For an employer to be held liable for coworker retaliation, a plaintiff must show
that supervisors or management personnel either (1) orchestrated the harassment or (2)
knew about the harassment and acquiesced in it in such a manner as to condone and
encourage the coworkers actions. Gunnell v. Utah Valley State Coll., 152 F.3d 1253,
1265 (10th Cir. 1998). Because Title VII is neither a general civility code nor does it
provide relief for the ordinary tribulations in the workplace, incidents of rudeness by
coworkers are insufficient to support a claim for retaliation. Id. (citing Faragher v. City
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of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 228684, 141 L. Ed. 2d 662
(1998)).
Hamby relies on two incidents as evidence to support her claim for coworker
retaliation. First, Hamby contends that an emergency staff meeting was held on
September 24, 2003, and that this meeting was called specifically to address her
complaints to OSHA and the OHRC. Hamby filed her OSHA complaint after a meeting
on September 11, 2003, in which her coworkers discussed her communication of
internal information about TSOC to outside sources and her conflict with Haws. Hamby
contends that Haws called the September 24 meeting to address Hambys OSHA
complaint, and she argues that Haws attendance and participation in the meeting is
circumstantial evidence that he orchestrated and condoned the harassment that allegedly
took place at the meeting. However, Hamby offers no evidence to refute that this was a
regularly scheduled team building meeting held at a Pizza Hut, attended by ACT and
TSOC employees to build positive, working relationships. Hamby points to an
unofficial transcript that purports to document the discussions at the September 24
meeting. But the district court noted that throughout the transcript, it appears that
Hambys coworkers were unaware that she had made the complaints. Further, there is
no evidence in this transcript that Haws orchestrated or condoned any alleged
harassment at the September 24 meeting.
As to the second incident, Hamby alleges that Haws condoned the drafting and
presentation of an agreement to Hamby for her signature that would prevent her from
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tape recording meetings. There is evidence that Hamby was tape recording meetings at
ACT, and that this was creating an internal conflict among the staff. It is unclear as to
whether Hamby was actually presented with this agreement. Hamby argues that it can
be inferred from Ruth Archers testimony that the agreement was presented to Hamby
and that it is uncontroverted that Hamby received the agreement. Assuming that Hamby
was presented with the agreement for her signature, she cannot provide evidence to
show that the presentation of the agreement was retaliation against her. Rather, the
record shows that Hambys taping of meetings was creating an internal conflict that
defendants sought to resolve. While Hamby alleges that she suffered harassment when
she was presented this agreement, her allegations are insufficient to bring a claim for
coworker retaliation, for such an ordinary tribulation in the workplace.
In addition to these two incidents, Hamby argues that the totality of the
circumstances show that her supervisors orchestrated harassment. Hamby contends that
all of the events described above, when taken as a whole, support her claim for
coworker retaliation. However, even when viewing all of these incidents together,
Hamby has failed to put forth any specific facts or evidence from which a jury could
infer that supervisors or management orchestrated, condoned or encouraged coworker
retaliation. Accordingly, because there is insufficient evidence in the record to support
a claim against defendants based on coworker retaliation, summary judgment on this
claim is affirmed.

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B.

FLSA Overtime Claim

The district court granted summary judgment on Hambys FLSA overtime wage

claim finding that she qualifies for the administrative exemption from the FLSA.12
Under 29 U.S.C. 207, an employer is required to pay an employee overtime wages
unless the employee fits into an exemption under 29 U.S.C. 213. Exemptions to the
FLSA are to be narrowly construed; the employer must show the employees fit plainly
and unmistakenly within [the exemptions] terms. Reich v. Wyoming, 993 F.3d 739,
741 (10th Cir. 1993) (quotations omitted). Whether Hambys employment activities
plainly and unmistakenly fit into the exemption and exclude her from FLSA coverage is
question of law that we review de novo. Id. (citing Icicle Seafoods, Inc. v. Worthington,
475 U.S. 709, 714, 106 S. Ct. 1527, 1530, 89 L. Ed. 2d 739 (1986)).
The district court relied on 29 C.F.R. 541.214 (2002), which provides that
employees who are compensated on a salary basis rate of at least $250.00 per week are
exempt from the overtime requirements provided that the employees primary duty
consists of either the performance of office or nonmanual work directly related to
management policies or general business operations of the employer . . . where the
performance of such primary duty includes work requiring the exercise of discretion and

12

The district court assumed, without deciding, that the FLSA applied to ACT.
Defendants argue that the FLSA does not apply to ACT because the Department of
Labor concluded the same. Like the district court, we will assume that the FLSA
applies to ACT when analyzing Hambys FLSA claims.
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independent judgment. 13 It is undisputed that Hamby meets the salary requirement, and
therefore we must determine whether Hambys primary duties consisted of office or
nonmanual work directly related to management policies or general business operations
in which she exercised discretion and independent judgment in her position.
Hamby argues that her job description fails to meet the requirement that her
primary duty consists of either the performance of the office or nonmanual work
directly related to management policies or general business operation of the employer.
The phrase directly related to the management or general business operations . . .
describes those types of activities relating to the administrative operations of a business
as distinguished from production or, in a retail or service establishment, sales work.
29 C.F.R. 541.205(a) (2002). The Fifth Circuit has described the distinction between
these two types of work as: between those employees whose primary duty is
administering the business affairs of the enterprise from those whose primary duty is
producing the commodity or commodities, whether goods or services, that the enterprise
exists to produce and market. Dalheim v. KDFW-TV, 918 F.2d 1220, 1230 (5th Cir.
1990). Hamby contends that she produced a commodity for ACT by carrying out the
day-to-day operations of ACT.
Hamby describes her duties as a family advocate as follows: (1) [s]upport for
the child and his/her family; (2) [b]e active member of the local teams; (3) [b]e a
member of the family team to assist in the strengths and the assessment and care plan
13

The 2002 verison of this C.F.R. regulation was in effect at all times pertinent to
this case. This regulation has been amended and codified at 29 C.F.R. 541.200.
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development; (4) [t]o mediate between the families and the professionals; (5) [a]t times
provide transportation; (6) [t]o fill out and submit flex forms for the families as
needed; (7) [t]o attend or speak at conferences as needed and assigned by the Project
Director; and, (8) [o]ther duties as assigned by the Project Director. All of these duties
are the type of work that is directly related to assisting with the running or servicing of
ACT. Hambys job required her to assist client families by advising and counseling
them regarding their problems and by advocating for them in order to promote ACTs
goal of helping families of mentally ill children. In providing support to these families,
Hambys job duties cannot be likened to the type of work performed on a manufacturing
production line or in selling a product in a retail or service establishment. Hambys
work in providing services to the client families was not akin to production or sale of a
commodity; rather, her work was directly related to the general business operations of
ACT.
Further, Hamby contends that she did not exercise the requisite discretion and
independent judgment in her employment position. [T]he exercise of discretion and
independent judgment involves the comparison and the evaluation of possible courses of
conduct and acting or making a decision after the various possibilities have been
considered. 29 C.F.R. 541.207(a) (2002).14 The exercise of discretion and
independent judgment implies that the person has the authority or power to make an
14

The district court cited the current version of this regulation, codified at 29
C.F.R. 541.202(a). While the two versions are substantively parallel, the Court will
apply the 2002 version of this regulation because it was in effect during Hambys
employment with ACT.
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independent choice, free from immediate direction or supervision and with respect to
matters of significance. Id. However, employees can exercise discretion and
independent judgment despite the fact that their decisions or recommendations are
reviewed at a higher level. Id. at 207(e)(2). The exercise of discretion and
independent judgment requires more than work along standardized lines involving
well-established techniques and procedures which may have been cataloged and
described in manuals or other sources. Id. at 207(c)(2). Types of work that do not
require the exercise of discretion and independent judgment include clerical or
secretarial work, highly technical and mechanical operations, and other routine work.
Id. at 207(c)(5), (c)(7), (d)(2).
In addition to the job duties previously listed, Hamby states that her position
required her to be there for the parent twenty-four-hours-a-day, seven-days per week
by telephone or in person when the family was in crisis due to an episode involving the
child or to assist with a temporary lack of resources, help the parent learn how to cope
with and assert themselves with the courts, social services, professionals, doctors, and
the educational system. Based on Hambys description of her position, she was
required to counsel and advise her client families making, as the district court accurately
described, game-time decisions in order to provide support to her client families and
to promote ACTs goal of helping the mentally ill. In this employment position, Hamby
exercised discretion and independent judgment when helping the client families.
Therefore, Hamby qualifies for the administrative exemption under the FLSA because
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her work directly related to management policies or general business operations of ACT
and she exercised discretion and independent judgment in her position as a family
advocate.
As the district court noted, Hamby was terminated for failing to follow the
communication policy, but defendants requirement that Hamby gain prior approval of
her communications does not alter the analysis. Hambys communications with others
regarding TSOC are not part of her job description, but even if they were part of her job
description, an employee can exercise discretion and independent judgment even if her
employment activities are reviewed by higher management. See 29 C.F.R.
541.207(e)(2) (2002). Because Hamby does not qualify as an administrative employee,
she is exempt from FLSA overtime coverage, and her claim under this statute fails.

C.

FLSA Retaliation

29 U.S.C. 215 prohibits an employer from discharging or discriminating against

an employee for exercising rights under the FLSA. FLSA retaliation claims are
analyzed under the McDonnell Douglas burden-shifting framework. Pacheco v. Whiting
Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004) (citing Richmond v. ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir. 1997)). Hamby argues that she meets the first prong of the
McDonnell Douglas test because she has established a prima facie case of retaliation by
showing that (1) she engaged in protected activity when she filed a claim for overtime
wages on April 6, 2004; (2) she suffered an adverse employment action when she was
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terminated on April 15, 2004; and (3) there is a casual connection based on the temporal
proximity between the protected activity and the adverse employment action. The
district court failed to apply the McDonnell Douglas burden-shifting analysis and simply
found that [t]he record shows, overwhelmingly, that Plaintiff was terminated because
she violated legitimate directives of her supervisors and thereby jeopardized TSOCs
ability to effectively serve its clientele. Aplt. App. at 574.
Applying the appropriate analysis to Hambys claim, we nevertheless affirm the
district courts grant of summary judgment. We agree with Hamby that she has
established a prima facie case of retaliation. Hamby engaged in protected activity when
she filed her claim for overtime wages on April 7, 2004, and she suffered an adverse
employment action when she was terminated eight days later on April 15, 2004. The
temporal proximity between the protected activity and the adverse employment action is
sufficient to establish a casual connection to make out a prima facie case of retaliation.
Compare Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (sixweek time period between protected conduct and adverse employment action was
sufficient to satisfy the causation prong to establish a prima facie case) with Richmond,
120 F.3d at 209 (holding that three-month period of time between protected activity and
termination was insufficient to establish a casual connection).
The burden then shifts to defendants to offer a legitimate non-retaliatory reason
for the adverse employment action. Pacheco, 365 F.3d at 1207. As stated above,
Hamby was terminated for a legitimate reasondisclosing a potential clients
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confidential information after being repeatedly instructed to clear all external

communications regarding TSOC business through her supervisor. The burden then
shifts back to Hamby to show that the proffered reason for her termination was pretext
for retaliation. Id. The Court has previously addressed all of Hambys allegations of
pretext, and has determined that she has not demonstrated any weaknesses or
implausibilities in defendants reason for terminating her employment. Hamby has not
presented any evidence on which a reasonable jury could infer retaliatory motive or
disbelieve Defendants proffered reason for terminating her employment. Id.
Therefore, because Hamby has failed to establish pretext, her claim for FLSA retaliation
cannot survive summary judgment.
D.

Violation of 42 U.S.C. 1985

42 U.S.C. 1985(3) provides:

If two or more persons . . . conspire . . . for the purpose of
depriving . . . any person . . . of the equal protection of the
laws, or of equal privileges and immunities under the laws; .
. . or cause to be done, any act in furtherance of the object of
such conspiracy . . . the party so injured or deprived may
have an action for the recovery of damages . . . .
To establish a claim under this statute, a plaintiff must show: (1) a conspiracy; (2) to
deprive a person of equal protection or equal privileges and immunities; (3) an act in
furtherance of the conspiracy; and (4) a resulting injury or deprivation. Griffin v.
Breckenridge, 403 U.S. 88, 10203, 91 S. Ct. 1790, 179899, 29 L. Ed. 2d 338 (1971).
Section 1985(3) does not apply to all tortious, conspiratorial interferences with the
rights of others, but rather only to conspiracies motivated by some racial, or perhaps
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otherwise class-based, invidiously discriminatory animus. Tilton v. Richardson, 6 F.3d

683, 686 (10th Cir. 1993) (citing Griffin, 403 U.S. at 102, 91 S. Ct. at 1798).
Hamby alleges that Haws, in his individual and official capacity, and Marks and
Blankenship, in their official capacities, violated 42 U.S.C. 1985 by conspiring to
deprive Hamby of her First Amendment rights. We agree with the district court that
because Hamby cannot provide evidence of a conspiracy, her claim under this statute
fails.15
To support her conspiracy argument, Hamby alleges that the ODMH brought
pressure on ACT to silence Hambys policy discussions in Washington, D.C. She
argues that the state was concerned that her efforts in Washington, D.C. would make
Oklahoma look bad, and therefore the state pressured ACT into advising Hamby that
she could face termination. To support these claims, Hamby provides an unofficial
transcript that purports to document a meeting between Hamby, Haws, and Blankenship
on November 26, 2003. In this meeting, the participants addressed the policy
discussions that Hamby had with federal SOC staff in Washington, D.C., but there is no
evidence of a conspiracy to silence her. Rather, in this meeting, Blankenship discussed
his concerns that Hamby complained about Haws to the federal SOC staff. Previously,
15

Defendants argue that because Hamby is not a member of a protected class, she
cannot bring a claim under 42 U.S.C. 1985. However, Hamby argues that she is a
member of a protected class because she is a parent of a mentally ill child and she is
associated with mentally ill people. The class-based animus language . . . has been
narrowly construed. Tilton, 6 F.3d at 686 (citation omitted). Because Hamby has
failed to show evidence of a conspiracy to support her 1985 claim, we need not
address whether the conspiracy was motivated by some racial or class-based
discriminatory animus.
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Hamby had been disciplined for disregarding the management system by complaining
about her supervisors and coworkers, and she had been repeatedly told that she was not
to complain about her supervisors to others, but rather she was to vent to authorized
persons. This meeting appears to be another attempt to remind Hamby that she was not
to complain about TSOC internal business outside of TSOC. There is no evidence of a
conspiracy to silence Hambys policy discussions, nor any other communications that
did not entail personnel matters.
Hamby also contends that Schneiders discussion with other state employees
regarding Hambys telephone call is evidence of a conspiracy. Hamby alleges that they
discussed how to handle the matter quickly and appropriately so that Hamby would
not talk to legislators during the appropriations session. However, the record shows that
Schneiders discussions with other state officials concerned Hamby divulging
confidential information about a potential client without approval from her supervisors.
Although Schneider acknowledged that Hambys actions could be damaging to TSOC,
there is no evidence of a conspiracy to silence Hamby.
Finally, Hamby argues that the policy that Haws was to approve all emails is
evidence of a conspiracy to silence her. But the evidence shows that Hamby had been
repeatedly reprimanded for making improper communications to people outside TSOC.
The policy that emails were to be approved before dissemination is not evidence of a
conspiracy to silence Hamby, but rather it shows TSOCs attempts at limiting Hambys
improper communications. Further, the February 23, 2004 memorandum describing the
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communication policy was distributed to all staff. There is no evidence that this policy
was a conspiracy designed to silence Hamby when the policy applied to every TSOC
staff member, not just to Hamby.
We recognize that [d]irect evidence of a conspiracy is rarely available, and the
existence of a conspiracy must usually be inferred from the circumstances. Fisher v.
Shamburg, 624 F.2d 156, 162 (10th Cir. 1980) (citing Loews, Inc. v. Cinema
Amusements, 210 F.2d 86, 93 (10th Cir. 1954)). But a plaintiff must bring forth more
than mere conclusory allegations to establish a claim under 1985. Brever v. Rockwell
Intl Corp., 40 F.3d 1119, 1126 (10th Cir. 1994). In this case, Hamby has failed to
provide evidence, either direct or circumstantial, of a conspiracy. Therefore, the district
court properly granted summary judgment as to Hambys 1985 claim.
E.

Public Policy Tort

The Oklahoma Supreme Court has held that circumstances which present an
actionable tort claim under Oklahoma law [occur] where an employee is discharged for
refusing to act in violation of an established and well-defined public policy or for
performing an act consistent with a clear and compelling public policy. Burk v.
K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). Hamby argues that defendants attempts
to limit her speech violated the policy of the SOCs Best Practice Model which
promotes the interests and concerns of mentally ill children and their families through
delivery and management of services. Initially, the Court notes that it is uncertain
whether Oklahoma courts would recognize the SOC Best Practice Model as a clear and
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compelling public policy under Oklahoma law. A public policy tort claim is actionable
when an employees discharge is contrary to a clear mandate of public policy. Burk,
770 P.2d at 29; see e.g., Groce v. Foster, 880 P.2d 902, 905 (Okla. 1994) (holding
public policy tort was actionable when an employer fired injured an employee who had
tried to collect workers compensation as well as bring an action against the contractor);
Sargent v. Cent. Natl Bank & Trust Co., 809 P.2d 1298, 1301 (Okla. 1991) (finding
public policy tort when employee was terminated for refusing to destroy a report in
violation of statute); Vannerson v. Bd. of Regents of Univ. of Okla., 784 P.2d 1053,
1055 (Okla. 1989) (holding employee could bring public policy claim if he could show
that he was terminated for alleging that his supervisor made an illegal disposition of
state-owned property); Todd v. Franks Towing Serv., Inc., 784 P.2d 47, 50 (Okla. 1989)
(finding public policy tort when employee was fired for refusing to drive a vehicle with
faulty brakes and headlights).
However, even if Hamby could establish that the SOC Best Practice Model is a
compelling public policy under Oklahoma law, she cannot show that she was terminated
for refusing to act in violation of an established and well-defined public policy or for
performing an act consistent with the SOC Best Practice Model. As explained above,
the evidence shows that Hamby was terminated when ACT learned that she had failed
to clear an external communication with her supervisor when she telephoned Schneider
and divulged confidential information. Additionally, as the district court found, the
requirement that Hamby clear external communications did not violate the SOC Best
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Practice Model, but rather this requirement appears to further the interests of the clients
by protecting private information and preventing the creation of a hostile work
environment. Therefore, we affirm the district courts summary judgment ruling in
favor of defendants on Hambys public policy tort claim.
F.

Intentional Infliction of Emotional Distress

To support a claim for intentional infliction of emotional distress under

Oklahoma law, Hamby must show that she suffered extreme and outrageous conduct
coupled with severe emotional distress. Gaylord Entmt Co. v. Thompson, 958 P.2d
128, 149 (Okla. 1998). The Oklahoma Supreme Court recognizes that this action is
governed by narrow standards and explains that [c]onduct which, though unreasonable,
is neither beyond all possible bounds of decency in the setting in which it occurred,
nor is one that can be regarded as utterly intolerable in a civilized community falls
short of having actionable quality. Id. (quoting Restatement (Second) of Torts 46).
Generally, the case is one in which the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
Outrageous! Dubbs v. Head Start Inc., 336 F.3d 1194, 1218 (10th Cir. 2003) (citing
Franks v. Mayberry, 985 P.2d 773, 776 (Okla. 1999) (quoting Restatement (Second) of
Torts 46, cmt. d)).
Hamby alleges that Haws verbally assaulted her on a number of occasions, and
these incidents caused her to suffer high blood pressure, anxiety, and depression. We
agree with the district court that even if true, Hambys allegations are inadequate to
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support a claim for intentional infliction of emotional harm because there is nothing in
the record to show that Haws actions rise to the level of extreme outrageousness
required to support a claim for intentional infliction of emotional distress under
Oklahoma law.
III.

Conclusion
For the foregoing reasons, we affirm the judgment of the district court granting

summary judgment in favor of defendants on all of the preceding claims asserted by

Hamby.

Entered for the Court

Julie A. Robinson
District Judge

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